WASHINGTON — Officials from the U.S. Department of Labor and the Florida Department of Revenue today signed a memorandum of understanding with the goal of protecting the rights of employees by preventing their misclassification as independent contractors or other nonemployee statuses. Under the agreement, both agencies will share information and coordinate law enforcement. The MOU represents a new effort on the part of the agencies to work together to protect the rights of employees and level the playing field for responsible employers by reducing the practice of misclassification. The Florida Department of Revenue is the latest state agency to partner with the Labor Department.
In Fiscal Year 2013, WHD investigations resulted in more than $83,051,159 in back wages for more than 108,050 workers in industries, such as janitorial, food, construction, day care, hospitality and garment. WHD regularly finds large concentrations of misclassified workers in low-wage industries.
“Misclassification deprives workers of rightfully-earned wages and undercuts law-abiding businesses,” said Dr. David Weil, administrator of the Wage and Hour Division. “This memorandum of understanding sends a clear message that we are standing together with the state of Florida to protect workers and responsible employers and ensure everyone has the opportunity to succeed.” “Working with the states is an important tool in ending misclassification,” said Wayne Kotowski, the Wage and Hour Division’s regional administrator for the southeast. “These collaborations allow us to better coordinate compliance with both federal and state laws alike.” “By partnering with the U.S. Department of Labor we are actively working to level the playing field for Florida’s businesses to stop the misclassification of workers. Businesses that misreport workers obtain an unfair advantage over other law-abiding businesses,” said Florida Department of Revenue Executive Director, Marshall Stranburg.

Business models that attempt to change or obscure the employment relationship through the use of independent contractors are not inherently illegal, but they may not be used to evade compliance with federal labor law. Although legitimate independent contractors are an important part of our economy, the misclassification of employees presents a serious problem. Independent contractors are often denied access to critical benefits and protections, such as family and medical leave, overtime compensation, minimum wage pay and unemployment insurance, to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.
Memoranda of understanding with state government agencies arose as part of the department’s Misclassification Initiative, with the goal of preventing, detecting and remedying employee misclassification. Alabama, California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, New York, Utah and Washington state agencies have signed similar agreements. More information is available on the Department of Labor’s misclassification website at http://www.dol.gov/misclassification/.
The mission of the department is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and ensure work-related benefits and rights. To learn more about the FLSA’s requirements, call the Wage and Hour Division’s toll-free hotline at 866-4US-WAGE (487-9243) or visit its website at http://www.dol.gov/whd/.

From Hultman Sensenig + Joshi: This is a topic near and dear to our hearts; if someone works only for you, is paid a salary, has no tools or equipment, and you control nearly every aspect of their employment, is it highly doubtful that they are a legitimate independent contractor. With this new agreement between the U.S. DOL and the FL DOR, if either Agency pays an employer a visit to review your “employees” vs. “contractors”, the other agency will soon be there to review whether civil money penalties and back taxes are owed – this is an expensive proposition. Be proactive, review the status of the people you engage vs. employ, and get some assistance if you have any questions.

There is no legal advice given through this blog, nor is an attorney client relationship created through the reading of this blog.

Directly from the EEOC’s website: http://www.eeoc.gov/eeoc/foia/letters/2014/ada_reasonable_accommodation_02_25.html

The U.S. Equal Employment Opportunity CommissionEEEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Reasonable Accommodation

February 25, 2014

Dear _:

This is in response to your letter to Chair Jacqueline A. Berrien, dated December 6, 2013, concerning a Sample Reasonable Accommodation Policy and accompanying sample forms. The sample policy, written by a law firm, notes that it is intended to aid employers in meeting their obligations under the Americans with Disabilities Act (ADA), as amended, and states that the accompanying sample forms are for “informational, educational, and/or training purposes only.”

You state that these documents were obtained from the website of a state agency. As your correspondence noted, a government official stated that the sample policy is no longer available on the agency’s website and was never used as official accommodation policy of any agency. Rather, it was posted only for training purposes.

We will not offer a comprehensive review of the sample policy and its forms. Instead, we address several aspects of the sample policy and accompanying forms that raise concerns, even if they are intended for “informational, educational, and/or training purposes.”1

Sample Disability Accommodation Policy

Requests for reasonable accommodations must be handled on an individualized basis. Employers generally need to engage in an interactive process to determine whether a reasonable accommodation is warranted, and this process is influenced by, among other things, the nature of an employee’s disability, the employee’s job, and the work environment. Consequently, it is difficult to develop a policy and related forms that can address all variables. In addition, the law in this area continues to develop, making it risky to conclude, as the policy does, that certain things never (or almost never) have to be provided as reasonable accommodations.

Leave

The sample policy states that an employer is not required to provide certain accommodations. The policy is correct that certain actions, such as eliminating essential functions, are not required. However, the sample policy states that an employer is not required to permit “unscheduled (or erratic, unpredictable, intermittent) or excessive absenteeism or tardiness as a reasonable accommodation.”

This formulation could lead to the inappropriate denial of a reasonable accommodation. First, the sample policy does not distinguish between unscheduled and excessive absenteeism. It is highly unlikely that an employer could deny unscheduled leave in all cases.

For example, an employee with epilepsy may have one or two seizures a year requiring unscheduled leave of one day each time. The fact that the leave is unscheduled, or could be characterized as erratic, unpredictable and intermittent, does not mean that an employer can deny this type of leave. An employer would have to grant leave under these circumstances as a reasonable accommodation unless it could show undue hardship.2

Second, the sample policy does not explain when leave needed as a reasonable accommodation will be considered “excessive,” thus increasing the possibility that requests will be handled inconsistently and leave will be denied inappropriately. Whether leave granted as a reasonable accommodation is “excessive” must be determined by considering whether it imposes an undue hardship.3

Working from Home

The sample policy states that working from home is “generally” not a reasonable accommodation “except in extraordinary circumstances.” While we are aware that some courts have found a legal obligation to provide telework as a reasonable accommodation to be limited,4 the law is far from settled. The EEOC recognizes telework as a form of reasonable accommodation and has provided guidance for employers and employees in determining if it may be an effective form of reasonable accommodation.5 Thus, the suggestion that working from home is not required except in extraordinary circumstances may lead an employer to violate the ADA. Of course, telework is not appropriate for all jobs. Working together, the employer and employee should determine whether it would enable performance of the job’s essential functions. Additionally, an employer need not provide telework as a reasonable accommodation if it is not necessitated by the disability or if another reasonable accommodation can be provided that will effectively meet an employee’s limitations.

Use of Mitigating Measures

The sample policy states, “if an employee can control an impairment with medication or assistive devices and thereby perform essential job duties, no reasonable accommodation would normally be needed or reasonable.” However, people with many types of disabilities and who use many different kinds of mitigating measures still may require reasonable accommodation because the mitigating measure either does not eliminate all disability-related limitations or because it imposes limitations. For example, someone with a prosthetic arm may require a device to assist with lifting, and someone with diabetes may need more frequent breaks to monitor blood glucose and insulin levels.

Our second concern is that this sentence can be read to mean that if an employee currently does not use medication or another mitigating measure, but an employer believes the employee could benefit from one, the employer may not have to provide a reasonable accommodation. The Sample Request for Accommodation Form, which asks the requestor to “list the medication and/or devices that you use or that have been recommended for you to use” (emphasis added), reinforces our reading of the language in the policy. A similar set of questions in the Health Care Provider Form asks a doctor if there are medications or assistive devices that could mitigate the effects of the impairment. If there are and the doctor has not prescribed them, the doctor is asked to explain why.

The effectiveness of medications and other mitigating measures can vary widely. The use of a particular medication or other mitigating measure may eliminate one employee’s need for a reasonable accommodation, but not another’s. Moreover, the choice of whether to use a mitigating measure is the individual’s, and an employer cannot base a denial of a reasonable accommodation on its belief that the individual ought to be using a particular mitigating measure instead.6

This form begins by stating that the employer is committed to accommodating the needs of any qualified individual who has a physical or mental impairment “which substantially limits his or her ability to perform the essential duties of the job.” However, an individual does not have to be substantially limited in the major life activity of working (there is no major life activity of performing essential functions) to have a disability under the ADA, and an employee who is substantially limited in a major life activity other than working (which will usually be the case) need not demonstrate that any work-related limitation necessitating a reasonable accommodation is “substantial.”7

Questions that Ask for More Information than Permitted by the ADA

The form asks questions that, in many situations, will violate the ADA if asked routinely of all employees requesting reasonable accommodation. Although, as the EEOC has noted, employers are permitted as part of the interactive process to ask disability-related questions if they are necessary to establish that the person has a disability and/or needs a reasonable accommodation, this does not entitle the employer to obtain any medical information it wants.8

First, if a disability is obvious (e.g., blindness, deafness, missing limb), an employer may not ask questions to establish if the person’s impairment is a disability.9 Even when the disability or need for accommodation is not obvious, the ADA prohibits employers from asking disability-related questions of employees unless they are job-related and consistent with business necessity.10 Employers may seek disability-related information as part of the interactive process as long as such information is necessary to establish that the person has a disability and/or needs a reasonable accommodation.11 The appropriate questions will differ in each situation depending on a number of considerations, including the individual’s impairment, the employer’s previous knowledge about the employee’s disability, and the type of reasonable accommodation requested. Therefore, requiring everyone who requests an accommodation to answer all of the questions on this form will violate the ADA in most, if not all, instances.

For example, we strongly disagree with the practice of routinely asking a person requesting reasonable accommodation to describe “your treatment plan in detail.” There may be situations in which an employer might be entitled to certain information about an employee’s treatment to determine whether a medical condition is a disability (such as information about use of a mitigating measure), or whether a person’s treatment is connected to the type of reasonable accommodation requested (most notably, where the employee has requested leave to obtain treatment). However, an employer cannot justify routinely asking individuals requesting a reasonable accommodation to divulge in detail their treatment plans. Similarly, although an employer may ask about the use of mitigating measures to determine an employee’s need for a reasonable accommodation, we disagree that employers may routinely ask individuals requesting reasonable accommodation what medication and/or devices “have been recommended for you to use.” Indeed, such a question will rarely, if ever, be permissible.

Questions that Require Employees to Address the Need for Accommodations They Have Not Requested

In addition to asking for medical information that may not be needed to evaluate a request for reasonable accommodation, the form focuses on certain types of reasonable accommodations, apparently requiring an individual to address the need for them, even if they are not the ones being requested. For example, there are questions asking whether (1) the requestor’s impairment requires leave or the need for adjustments to work schedules or (2) the impairment affects the ability to work a normal work schedule. There is no reason to ask these questions of someone who, for example, requests a modification of equipment or a sign language interpreter.

Focusing on Certain Accommodations to the Exclusion of Others

The form implies that the listed questions are the only ones that should be asked in response to a request for reasonable accommodation. However, the form does not ask questions that would be helpful in assessing requests for accommodations such as modification or purchase of equipment, a change in a workplace policy (other than leave and attendance policies), the ability to bring a service animal to work, or removal or substitution of a marginal function. Additionally, the form does not account for situations in which employees require accommodations for reasons other than to perform essential functions. The obligation to provide reasonable accommodation extends to employees seeking equal access to a benefit or privilege of employment, such as employer-provided training, as well as to applicants who require accommodation for some aspect of the hiring process.12 We are not suggesting that this form be lengthened to add more questions (we think it is already too long as an initial means of obtaining information related to a request for reasonable accommodation); rather we want to point out that the wide-ranging nature of reasonable accommodations undermines any attempt to draft a comprehensive form that asks all the right questions.

Questions that Are Confusing or Irrelevant

One question asks whether the impairment limits the person’s “ability to perform or engage in any activities outside of work[.]” If the question is an attempt to determine the major life activity that is substantially limited as a result of an impairment, it is poorly worded to elicit such information. If the question has nothing to do with determining whether the requestor has a disability, then the question would appear to be irrelevant.

A follow-up question implies that an inconsistency exists if a requester states that an impairment affects work-related activities but not non-work activities: “Explain why your non-work activities are not affected when the impairment will affect your work activities.” (emphasis in the original). However, it is quite possible that a disability will present work-related difficulties that do not affect an individual off the job.

Failure to Explain the Reason for Asking the Questions on the Form

Finally, we note that the sample form does not explain the need for asking any of these questions. Once an employer has carefully considered the necessity of asking certain questions as part of an interactive process, it should explain to the individual, either on the form or in person, the reason for asking each question, i.e., an employer should explain how a particular question provides information to establish the existence of a disability and/or a need for reasonable accommodation. Though not specifically required by the ADA, this can encourage the individual’s cooperation in providing information.

Health Care Provider Questionnaire

This sample questionnaire is 7 pages long and asks many of the same questions asked in the sample Request for Accommodation Form. The ADA prohibition on asking disability-related questions of an employee, except if they meet the “business necessity” test, extends to questions asked of an employee’s doctor.13 Consequently, we believe that a number of the questions on this form that also appear on the sample Request for Accommodation form discussed above would violate the ADA for reasons discussed in the previous section.

Also of concern is the wording of certain questions. They give a doctor limited choices in answering, apparently because the form seems to focus on a limited number of reasonable accommodations. For example, one question asks the doctor whether the employee is able to perform his job, including meeting normal attendance and overtime requirements. If the doctor answers no, then the doctor is instructed to check only one of the following three answers:

The Patient is not able to perform any job duties and needs a continuous leave of absenceThe Patient is able to perform all job duties but needs a special work scheduleThe Patient is able to perform some, but not all, job duties.The questions do not take into account the possibility that the employee can perform all work functions but needs a reasonable accommodation other than a modified work schedule. Perhaps this sample form is intended to be used only for employees requesting leave or changes to their work schedules, but that is by no means clear.

The ambiguity of other questions raises concerns that a doctor’s answers could, incorrectly, lead an employer to fail to provide a reasonable accommodation or exclude a qualified individual with a disability from working. For example, one question asks the doctor to answer “yes” or “no” to the following: Will the Patient fully recover from the Health Condition at some date in the future so that the Patient can perform all job duties without restrictions?” It is not clear how the doctor should respond if, for example, the employee will never fully recover but may still be able to perform all job duties without restrictions.

More troubling is the fact that the sample form suggests to an employer that an employee who has been on leave because of a disability or who sustained an injury must ultimately be able to work without any restrictions. Employers cannot require that employees be fully recovered or able to work without restrictions if an employee could return to work with a reasonable accommodation (absent undue hardship).14

Conclusion

The wide range of disabilities, employers, jobs, workplaces, and reasonable accommodations makes it exceedingly difficult to develop a form with questions that almost everyone requesting accommodation would need to answer. Additionally, the longer the form, the higher the likelihood that many requestors (or their health care professionals) will be asked questions that violate the ADA and do not serve the employer’s interest in obtaining relevant information to make an informed decision about the request for reasonable accommodation.

If an employer uses forms to gather information about the need for a requested reasonable accommodation, it should ask, in plain English, the few questions that will help to determine whether the requestor has a disability and needs a reasonable accommodation. (If the disability is obvious, then an individual should be asked to answer only those questions on the form that address why a reasonable accommodation is needed.) Regarding the existence of a disability, for example, a form could ask information about the nature of the requestor’s impairment and its expected duration; the kind of activities, including major bodily functions, that the impairment affects; and the way in which the activities are affected.15 A form could also ask about the use of mitigating measures and the extent to which they eliminate or control the impact of the medical condition. It is helpful to give examples to explain terms that many people may not recognize as having specific legal meanings. So, a form that asks about an impairment’s effect on “major bodily functions” or other “major life activities,” could offer examples such as normal cell growth; endocrine, neurological, or brain function; standing; lifting; and concentrating. Similarly, a form could provide examples of mitigating measures such as medication, physical therapy, assistive devices, and behavioral modifications. Regarding the need for reasonable accommodation, a form could ask how an accommodation would assist the individual to apply for a job, perform the job’s essential functions, or enjoy equal access to the benefits and privileges of employment.

Employers should consider the purpose behind each question on a form, i.e., whether the answer will provide information concerning the existence of a disability, the need for a reasonable accommodation, or both. Any question that does not address at least one of these issues should be carefully reviewed to determine whether the information requested is necessary to enable the employer to determine the need for a reasonable accommodation, especially if it is a disability-related question. Employers also may wish to have an appropriate management official handling the request (e.g., an HR director) review the form before giving it to a particular applicant or employee to determine if certain questions should be eliminated as irrelevant to the particular request and/or whether other questions should be asked.

I hope this information is helpful. This letter does not represent an official opinion of the EEOC.

Sincerely,

/s/

Peggy R. MastroianniLegal Counsel

Footnote

1 We note that the introduction to the sample forms does encourage an employer to seek legal advice from its counsel when faced with “particular fact situations.”

2 Example 34 in EEOC’s Q&A on “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, http://www.eeoc.gov/facts/performance-conduct.html, addresses a similar situation. This section also provides examples where an individualized assessment of the facts supports an undue hardship determination. The discussion also notes the impact of the Family and Medical Leave Act when an employee requests intermittent leave, something the sample policy does not acknowledge in suggesting that intermittent leave may generally be denied.

3 The sample policy states that “not all possible accommodations are reasonable” and this includes “excessive absenteeism.” The EEOC regards the length of leave as an issue of undue hardship. See Question 44 in EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, http://www.eeoc.gov/policy/docs/accommodation.html [hereinafter “EEOC Accommodation Guidance]. Therefore, we believe that it would be better to explain that denial of excessive leave will be based on the undue hardship factors, which include the impact on the employer’s operations resulting from leave already used and any additional leave requested.

6 See Question 38 in EEOC Accommodation Guidance, supra note 3. As the answer to Question 38 points out, the decision to forgo use of medication, treatment, or an assistive device (or any other mitigating measure) may render an individual not qualified. See also 29 C.F.R. pt. 1630 app. § 1630.2(j)(1)(vi).

15 The ADA Amendments Act of 2008 (ADAAA) made it much easier for individuals claiming rights under the ADA to show that they have covered disabilities. For example, certain impairments will easily be found to be disabilities, including diabetes, post-traumatic stress disorder, and epilepsy. See 29 C.F.R. § 1630.2(j)(3)(iii) and 29 C.F.R. pt. 1630 app. § 1630.2(j)(3). Information substantiating that an individual has one of these types of impairments should be sufficient to establish that the individual has a covered disability. As a result of the ADAAA, most of the focus of the reasonable accommodation process, and the forms used to gather information as part of that process, should be on whether an accommodation is needed, and if so, what type, rather than on whether an individual has a covered disability.

Comments from Christine Sensenig of the Sensenig Law Firm:

One size fits all does not apply to the ADA, or the ADAA. Employers must consider each request for a reasonable accommodation on a case-by-case basis. Employers must also consider the actual impact on the organization as a result of the employee’s request for accommodation. While a very small employer may not be able to accommodate an employee’s request for major changes in his or her work schedule, larger employers will not have the same restrictions. Using forms provides consistency for an employer, but that form must be tailored each and every time to apply to the unique situation at hand. The key phrase to use is “how can we help you?” when addressing disability related issues.

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.